2005 CLC 144

Per Muhammad Muzammal Khan, J.

(a) Constitution of Pakistan, 1973 Article 199

Primarily controversy requiring determination by this Court, hinges around the dispute as to whether DRTA was competent to franchise the routes during the currency of valid route permits issued by it, in favour fo the petitioners and whether the complained act, amounts to depriving them of their Constitutional rights of adopting the lawful business of their choice. Undeniably the transport business had been controlled/regulated through different statures and at the present the law applicable is the Motor Vehicles Ordinance XIX of 1965. The relevant provision for resolving the controversy in these petitions is section 69-A which was added to the Ordinance in 1999 (Ordinance IX of 1999), its subsection (2) defined that word “franchise” would mean a permit granted to an operator for operation of stage carriages with a capacity of 70 or more passengers by a bus service providing and maintaining the prescribed facility.

The above provisions manifest that after notification of franchise of any route by concerned authority, the existing permits shall stand rescinded by operation of law and for this purpose no formal cancellation order is needed. In these circumstances absence of notice or opportunity of hearing could not be claimed by the petitioners, as their permit stood cancelled automatically. The District Regional Transport Authority/ respondent No. 5 has shown a grace by allowing the petitioners to have alternate route permits for the route other than those franchised, without any further charges. [pp. 149, 150]A,B & C

(b) Constitution of Pakistan, 1973 Articles 18, 25 & 199

In view of this concession shown to the petitioners, it does not lie with them that they have been deprived of their business in violation of the warrantees, available to them under Article 18 of the Constitution of Pakistan, 1973. Freedom of trade business or profession guaranteed by the Constitution is subject to certain qualifications as may be prescribed by law and can be hedged to the extent of a lawful prohibition, so imposed, thus, the restriction created/imposed by section 69-A(4) of the Ordinance, 1965 cannot be claimed, as prayed by the petitioner. For similar questions of discrimination, under Article 25 of the Constitution term equality before law, referred to different classes created by a stature, for fulfilling the purposes for which the stature was promulgated. The rationale behind the franchise of route is to provide qualitative, comfortable and excessive transport to the public and such classification being permissible under the Constitution, cannot be knocked down by simply saying it, to be discriminatory.
Vires of the provisions of section 69-A(4) of the Ordinance (ibid) were scrutinized by a Full Bench of this Court, on the basis of different touchstones which need not be recapitulated here again, the entire case law applicable was thrashed and it was held that those provisions are intra vires of the Constitution and all the questions formulated in the judgment, referring the matter to the Honourable Full Bench, covered the controversy canvassed now by the petitioners, and were answered against them in the judgment given in Writ Petition No. 2418 of 2001. Alike view was taken by the Division Bench of this Court on 1-2-2001 in Writ Petition No. 9436 of 2000. Against the Full Bench judgment in Writ Petition NO. 2418 of 2001 leave to appeal has been granted by the Honourable Supreme Court in the case of Arshid Mehmood v. Government of the Punjab PLD 2003 SC 567 but while granting leave, operation of the judgment passed by this Court, was not suspended and the interim injunction earlier issued in C.P. No. 4213-L of 2002 was recalled. It shows that prima facie stance taken by the petitioners, was not graciously considered to stay the operation of the franchise granted by the D.R.T.A. [pp. 150, 151] D, E, F & G

(c) Constitution of Pakistan, 1973 Article 199

So far as issuance of corrigendum by the Secretary, D.R.T.A. is concerned, he being an official of the Authority, issued corrigendum obviously under the decision/dictates of D.R.T.A. This corrigendum only added the following words to the earlier notification dated 31-3-2004 namely:– “for any other non-franchised route of their choice”. The addition, attached by the petitioners or Writ Petition No. 4888 of 2004 created a right of alternate route permit in favour of the petitioners and it is not against their interest. Be that as it may, this corrigendum brought the original notification in the line with the other notifications/impugned in Writ Petition No. 11016 of 2004 which were undisputedly under the approval of the D.R.T.A. These notifications show that the Secretary is the person who corresponds and issues the orders/notifications on behalf of the D.R.T.A., hence the challenged of the petitioners on this count, is of no help to them.

Civil Procedure Code, 1908 which is directly applicable to the Constitutional petitions, which in its Order I, rule 8 lays down the method and manner of filing the representative suits/ petitions. These provisions are of directory nature and omission to follow those provisions would result in, follow up of the procedure provided in Order I, rules 11 and 12 of the C.P.C., thus, the objection of the respondents, regarding maintainability of the writ petition in representative capacity, is truned down. As regards availability of statutory remedy of appeal under section 66 of the Motor Vehicles Ordinance, 1965, it has worth in it because any person aggrieved by the refusal to grant permit by the D.R.T.A. can challenge the order to refusal in appeal but the relief claimed by the petitioners, with regard to franchise of the routes could not be prayed in appeal, as is evident from the provisions thereof, thus, the Constitutional petition cannot be thrown on this objection, as well. [p. 151] H, I & J